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	England and Wales Court of Appeal (Criminal Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Ogunyemi, R. v [2006] EWCA Crim 3163 (08 December 2006) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2006/3163.html Cite as: [2006] EWCA Crim 3163

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IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2
		8th December 2006

1. THE RECORDER OF BIRMINGHAM: On 1st August 2006, at Croydon Crown Court, this applicant was convicted, after a trial, of using a false instrument with intent, contrary to section 3 of the Forgery and Counterfeiting Act 1981. He was sentenced by His Honour Judge Amley to 20 months' imprisonment. He has been refused leave to appeal by the Single Judge and renews his application to the Full Court.
2. The facts are these. The applicant is Nigerian and holds a Nigerian passport. He is married to a Dutch national. He holds a residency permit for this country because he is married to a Dutch national.
3. On 14th September 2004 the applicant attended the Greenwich Social Security Office. His purpose in doing so was to obtain a national insurance number. In order to obtain one he had to produce his own passport and his wife's passport. The passport in his name that he produced was perfectly genuine but the one produced in his wife's name was false. Subsequently a genuine passport in the applicant's wife name has been produced to the authorities but at a much later stage.
4. The applicant claimed at the trial that he did not know that the passport in his wife's name that he had produced at the Greenwich Social Security Office was false. The jury clearly disbelieved him and it follows that no credible explanation for the production of the false passport has been given by the applicant.
5. There were curious features in the evidence about the applicant's relationship with his wife. In interview the applicant said they were still together but she had moved to Birmingham to work. He was unable to supply, during the interview, her address, which he said he did not know, or where she worked and he was unable to provide a contact number for her. He appeared to have no way of getting in touch with her.
6. The judge, of course, had the benefit, which we do not have, of hearing all the evidence in the case and forming his own view of the applicant and the facts of the case.
7. Mr Blake -James makes the following complaints about the sentence. Firstly, the judge should have granted a request for an adjournment to obtain a pre -sentence report before sentencing. Secondly, that insufficient weight had been given to the applicant's good character. Thirdly, that the sentence is significantly above the sentencing guidelines for this sort of case. Fourthly, that if the sentence was within the guideline, the unique mitigating features, as he describes them, in the case, should have resulted in a sentence which departed from the guidelines.
8. In our judgment the learned judge was perfectly entitled not to adjourn for a pre -sentence report. He was sentencing after a trial and he had had the opportunity to hear the applicant give evidence, which perfectly properly had laid emphasise on the applicant's good character and the part he played in the community. There was no feature of the case which suggested that a pre -sentence report would assist the judge.
9. The guideline case for this type of offence is R v Kolawale [2004] EWCA Crim 3047. In that case the Vice -President, Rose LJ, having reviewed the earlier authorities, said as follows and we only quote the part relevant to this case:

"Where one false passport is being used, contrary to section 3... the appropriate sentence, even on a guilty plea, by a person of good character, should now usually be within the range of 12 to 18 months."

It follows that a sentence of 20 months after a trial, even for a man of good character, is well within the range of sentence suggested by this guideline case. Should the judge have regarded this as a case where the sentence should be outside the range suggested in the guideline case because of the mitigating features. Clearly a judge always retains a discretion not to follow the guidelines in a case which in his judgment merits it. Each sentence has to be related to the facts of each particular case.

10. Here, it is argued that the fact that the applicant's wife did have a genuine passport makes it one of those cases where a departure is justified from the guidelines. It has to be remembered that one of the reasons for the guidelines in this type of case is the prevalence of this type of offence and the need to deter others by letting it be known that severe sentences will be passed for offences which involve the use of a false passport. Also, the trial judge is in uniquely the best position to decide whether it is one of those cases which justifies departure from the guideline. The judge in this case decided it did not. There were, in our judgment, features of the case which entitled him to come to that conclusion. His decision is not a decision with which we consider it is right to interfere and accordingly the application for leave is refused.